Plaintiff May not Modify Meaning of Terms of Contract After Loss
Barry Zalma
Read the full article at https://lnkd.in/gr8Qd-vN and at https://zalma.com/blog plus more than 4450 posts.
In Sayreville Seaport Associates Urban Renewal, L.P. v. Indian Harbor Insurance Company, Appeal No. 17222, Index No. 651626/21, Case No. 2022-02167, 2023 NY Slip Op 00505, Supreme Court of New York, First Department (February 2, 2023) the appellate court, as is usual for New York Appellate Courts, resolved the claim of Sayreville in brief and clear analysis.
FACTS
In 2008, plaintiff entered into a long-term ground lease to develop several parcels of property located in New Jersey. In 2007, plaintiff had retained nonparty Roux Associates, Inc. to perform environmental due diligence relating to the acquisition of the property, and Roux drew a map identifying the geographic boundaries of various areas believed to include radiological soil contamination. Indian Harbor Insurance later issued a policy covering the property for the period between October 15, 2008 and October 15, 2018; the policy contained an endorsement, 15, stating that the policy excluded remediation expenses for costs arising from radiological contamination in soil on particular areas of the property.
Endorsement 15 identified those parcels by reference to the Roux map. After the policy took effect, it was discovered that remediation was required in areas not previously identified as contaminated, and in September 2018, plaintiff submitted claims regarding the discovery of radiological soil contamination in four areas on the property. As relevant here, defendant denied the claims for three of the areas, stating that under endorsement 15, they fell within the excluded geographic region in the Roux map.
ANALYSIS
The plain and ordinary meaning of the unambiguous policy terms presented to the trial, The Supreme Court, required it to correctly conclude that endorsement 15 excluded coverage for the parcels at issue because they were located within the excluded geographic areas plainly designated on the Roux map.
Plaintiff tried, but the appellate court refused, to create an ambiguity in endorsement 15 by referring to its own nomenclature for the subareas that fall within those geographic areas and then claiming that the subareas do not fall within the scope of the exclusion.
To adopt plaintiff’s interpretation of endorsement 15 and the Roux map would render the endorsement meaningless, contrary to the rules of contract interpretation.
ZALMA OPINION
Insurance appellate decisions are often long and annoying to read. New York appellate decisions, like this one, cut to the key issue and rule. Thank you, New York. Clear and unambiguous policy language must be applied as written and imaginative interpretation by insureds seeking coverage for losses for which they did not pay, cannot succeed.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]
Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com. Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library
Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://lnkd.in/gfFKUaTf.
Go to substack at https://lnkd.in/gEEnV7Dd Consider subscribing to my publications at substack at https://lnkd.in/gEEnV7Dd
Barry Zalma, Esq., CFE is available at http://www.zalma.com and [email protected].
Write to Mr. Zalma at [email protected]; Go to the Insurance Claims Library – https://lnkd.in/gWVSBde
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When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
